Attorney George Barrett ready to sue if Metro Council district lines are not redrawn promptly

Created 01/23/2011 - 10:05pm

Every 20 years, the U.S. Bureau of the Census releases its decade-ending decennial population figures as Davidson County simultaneously prepares for a countywide election.

And every 20 years, George Barrett’s presence looms.

A veteran local attorney known for his civil rights, labor and constitutional work, Barrett is determined to ensure that the city redraw its 35 Metro Council district lines to maximize voter representation accuracy. And he wants this done promptly so as to avoid the legal action he is prepared to take.

Last week, Barrett sent letters to each Metro council member, Mayor Karl Dean, members of the Metro Planning Commission and Metro Legal Department Director Sue Cain, asking them to use finalized 2010 census data that could be released to Metro as soon as February to redraw council district lines and avoid potential legal challenges.

“The citizens of Nashville should not be submitted to four years of governance by an improperly constituted city council,” Barrett wrote in the letter. “I stand ready to seek the assistance of the federal court should such reapportionment not take place prior to the August 2011 city council elections.”

Barrett, of the firm Barrett Johnston LLC, is no stranger to the city’s election process. In 1962, he helped expose a voting scandal involving improper use of ballots. He closely watched the city following the 1971 decennial and reapportionment process. When the Metro Elections Commission scheduled its 2007 run-off vote on Rosh Hashanah, Barrett represented a plaintiff who sued. The commission changed the date.

Though city officials contend the redrawing of council district lines cannot easily be done prior to the May 19 qualifying deadline for candidates — much less the Feb. 18 date on which those candidates can pick up filing petitions — Barrett argues otherwise. He points to 1971, when Metro was able to mesh the collection of decennial census data with the subsequent redrawing of the district borders.

“With computers, they can get this done — in relation to what they had to do before computers — figuratively in five minutes,” Barrett said.

Barrett is exaggerating, of course. But according to city sources interviewed for this story, it is hypothetically possible that the task could be accomplished if the census numbers arrive in early February.

Under one scenario and with final decennial census numbers in hand by early February, the Metro Elections Commission could move the date to pick up filing petitions from Feb. 18 to, for example, March 18. The Metro Planning Department, using cutting-edge mapping tools and software, would redraw the lines — including, perhaps, school board district borders — by early March.

At this point, the Metro Council would have to approve the newly drawn lines, but it could do so via a fast-track approach, giving candidates about two months, instead of three, to finalize their efforts.

That scenario is not ideal, according to Tom Cross, associate director of Metro legal. Cross points to a 1992 lawsuit, led by Barrett, in which the U.S. Court of Appeals for the Sixth Circuit eventually ruled in favor of Metro, saying that despite population shifts from 1980 to 1990 that left some disparities in the one-person-one-vote law, new elections under new boundaries would not be required.

At the time, the largest of the 35 council districts was home to almost three times as many people as the smallest district. There were large deviations from the average in many other districts as well, deviations that the parties agreed, the ruling reads, would not have passed constitutional muster had the districts then in effect been tested against the 1990 census rather than the 1980 version, under which the plan was drawn.

The court considered whether Metro had a constitutional duty to rerun the elections held just after the decennial census data became available in 1991 but before the old apportionment plan could be changed. In short, the plaintiffs asked the court if it should allow Metro to use outdated 1980 census figures for 15 years when the districts had become “grossly malapportioned under the 1990 census” and the city had adopted a new constitutional plan to be used for the 1995 elections.

The court concluded that new elections were not required.

“In any system of representative government, it is inevitable that some elections for four-year or longer terms will occur on the cusp of the decennial census,” the court wrote. “The terms inevitably will last well into the next decade; and, depending on shifts in population in the preceding decade, the representation may be unequal in the sense that the districts no longer meet a one-person-one-vote test under the new census.”

The Metro Charter gives the planning department six months to redraw districts lines from the time it receives decennial census data.

“There is considerable flexibility, which is not to say we shouldn’t try our best to get things done as efficiently and promptly as possible,” Cross said.

Craig Owensby, spokesman for Metro planning, said the department has not received final census figures. He said the department plans to promptly handle the effort but declined to offer a timetable for completion.

“We wouldn’t want to speculate on how this may play out because we don’t know when we’re getting the numbers,” he said. “And there are other factors that affect the process.”

Lynn Greer, chair of the Metro Elections Commission, said Barrett’s argument is legitimate.

“The fact is, the timelines don’t work,” Greer said.

Barrett counters by noting that improved mapping technology and 2010 census numbers the city already has can aid Metro planning in promptly finalizing the redrawn districts.

Additional and final census data — including information about race and ethnicity, as well as county-level numbers that legislatures use to reapportion seats among state Houses and Senates — will be published on a rolling basis between February and April. When exactly Metro will receive the final numbers is unclear.

Barrett said he does not yet have a timetable for a possible lawsuit. “We’ve got to give them a reasonable amount of time in February,” he said.

Barrett points to the U.S. Supreme Court case Baker v. Carr that came out of Nashville and set the “one person, one vote” precedent for political representation. He contends the Constitution trumps the Metro Charter.

When asked if, hypothetically, a Davidson Country resident is unwittingly voting in a district in which she — had the lines been redrawn beforehand — would not have voted otherwise constitutes a direct or indirect violation of the “one person, one vote” law, Barrett responded without hesitation.